Sait and Auton
[2018] FCCA 146
•2 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAIT & AUTON | [2018] FCCA 146 |
| Catchwords: FAMILY LAW – Property application – orders for discovery – respondent persistently non-compliant with orders – order made for respondent’s arrest – respondent fails and refuses to disclose assets – significant non-disclosure – concealment – applicant required to prove case by issue of many subpoenas – consideration of existence and value of property – undefended hearing –respondent chose not to participate in proceeding but participates in trial – respondent failed in duty of full and frank disclosure – respondent adduces evidence and suggests that matrimonial home had been transferred by applicant to respondent – transfer never registered – applicant had indefeasible joint interest in matrimonial home – parties married under (religion omitted) law – consideration of religious ceremony under Marriage Act 1958 (Cth) – whether or not marriage void – whether marriage includes a void marriage for purposes of Part VIII of Family Law Act 1975 (Cth) – domestic violence – respondent subject of criminal proceedings – matrimonial home sold – proceeds held on trust by parties’ solicitor – without applicant’s knowledge entire proceeds of sale transferred to respondent – respondent secures payment of superannuation entitlements – respondent refuses to divulge location of any funds – respondent suggests funds dissipated – consideration of existing property interests – proceeds of sale of property, superannuation and legal expenses added back – just and equitable to make order for property adjustment. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 39, 75, 79, 80 Family Law Rules 2004 (Cth), rr.11.01, 11.02 |
| Cases cited: A and Z [2006] FamCA 179 Lanceley and Lanceley (1994) FLC 92-491 Laurens & Laurens (No.2) [2017] FCCA 109 Liversey v Jenkins (1985) 1 All ER 106 Oriolo & Oriolo (1985) FLC 91-653 Parrott v Public Trustee of NSW(1993) 17 Fam LR 785 Texts cited: Broun & Fowler, Australian Family Law & Practice, Vol 1 |
| Applicant: | MS SAIT |
| Respondent: | MR AUTON |
| File Number: | MLC 6106 of 2007 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 13 October 2017 |
| Date of Last Submission: | 13 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 2 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kiernan |
| Solicitors for the Applicant: | Berry Family Law |
| Respondent: | In person |
THE COURT ORDERS THAT:
The applicant shall retain the following property:
(a)any amount standing to the credit of her bank accounts;
(b)her Honda (omitted) motor vehicle;
(c)her superannuation;
(d)her personal effects and any chattels in her possession.
The respondent shall retain the following property:
(a)any amount standing to the credit of his bank accounts;
(b)his personal effects and any chattels in his possession.
The respondent pay the applicant the sum of $230,000.
Save for the purposes of enforcing any orders made above:
(a)each party is solely entitled, to the exclusion of the other, to all and any other property in the possession of such party as at the date of this order;
(b)each party foregoes any claims that they may have as to any superannuation, compensation, insurance, employment or any other benefits belonging to, earned or receivable by the other;
(c)all insurance policies remain the sole property of the named owner;
(d)each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party may be entitled pursuant to this order, and in respect of any other liability that may be incurred in their name;
(e)any joint tenancy of the parties in any real or personal property is severed.
IT IS NOTED that publication of this judgment under the pseudonym Sait & Auton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6106 of 2007
| MS SAIT |
Applicant
And
| MR AUTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are the reasons for judgment for orders that are made in an undefended application for adjustment of property interests. While the parties’ property interests are quite modest, the complication in the present proceeding arises from the circumstance that the respondent has persistently failed and refused to account for both the net proceeds of sale of a property that was jointly owned by the parties and his superannuation which he has now received. The property was situate at Property A (Property A property).
The applicant sought orders for payment of a sum reflecting a just and equitable adjustment of the parties’ property interests; in particular, that an amount be payable to her following a sale of that property in 2011. In the course of the opening, I confirmed that the respondent understood the applicant sought an order that he pay her $300,000 by way of adjustment in the property settlement proceeding.
At the commencement of the trial, I explored with the respondent what orders he considered appropriate. He adopted the position that the Property A property was his and that the applicant was entitled to nothing.
In substance, I have concluded that an order should be made that the respondent pay the applicant the sum of $230,000.
Procedural history
On 9 July 2004, the respondent commenced an application in the Family Court of Australia seeking parenting orders. The proceeding was listed for a case management conference in August 2004 and then withdrawn shortly afterwards as the parties had reconciled.
On 29 May 2007, the respondent commenced a proceeding in this court again seeking parenting orders. In the period 2007-2008, a series of parenting orders were made.
On 12 November 2015, the applicant filed an initiating application seeking property settlement orders pursuant to s 79 of the Family Law Act 1975 (Cth). By way of interim relief, the applicant sought orders for discovery by the respondent.
On 9 February 2016, the matter was listed for directions. The respondent did not appear. Orders were made for the respondent to file a response, affidavit and a financial statement. The respondent was further ordered to comply with his obligations to make discovery. A further order was made that if the respondent did not do so, the applicant would have leave to proceed on an undefended basis.
The respondent did not comply with those orders.
On 13 April 2016, an order was made that the matter be adjourned to 10 August 2016 for final hearing on an undefended basis.
A further series of interim orders was made on 10 August, 7 September, 9 September and 22 November 2016. In the course of those orders being made: (a) the respondent was ordered to appear to give evidence; (b) a warrant was issued for the arrest of the respondent; (c) orders for costs were made against the respondent; (d) the respondent was restrained from leaving Australia; (e) an order was made to facilitate disclosure via the Australian Transaction Reports and Analysis Centre (Austrac) of the transfer of monies from the respondent’s bank accounts; (f) the warrant was discharged upon the respondent’s undertaking to attend court; (g) the matter was again fixed for hearing; (h) the respondent was ordered to file material. He did not do so.
On 13 September 2017, the matter came on for hearing. The respondent appeared but had filed no material. The respondent maintained that the applicant had no entitlement to an adjustment of the parties’ property interests. The respondent produced a (omitted) membership card and suggested, in effect, that ‘there was no money.’ Orders were made that the respondent file material and that he pay the costs of that day. The matter was adjourned to 13 October 2017.
With a view to assisting the parties to resolve the proceeding and to regulate the orderly preparation of the matter for trial, a series of orders had been made for the filing of evidence and outlines of the case. The applicant has filed three affidavits in obedience to those orders together with an outline of case and a current financial statement.
The respondent has ignored the orders made in the proceeding. Historically, the respondent had retained Randles, Cooper & Co Pty Ltd (Randles), lawyers, in relation to his various criminal and family law proceedings. However, as concerned the applicant’s property settlement proceeding, he filed no response, no affidavit, no financial statement and no outline of case. The respondent appears to have participated in this undefended hearing only because a warrant had been issued to secure his attendance and, upon his attendance being secured, the respondent recognised that the applicant sought orders for adjustment of the parties’ property interests.
The circumstance of the respondent’s refusal to comply with court orders has hindered the applicant in her ability to obtain evidence relevant to the parties’ property and financial resources. The applicant has had to resort to subpoenas to secure the production of documents from third parties such as the respondent’s banks and his superannuation funds. To prove her case it has also been necessary for the applicant to trace the respondent’s use of funds via Austrac. In all, subpoenas were issued upon the (employer omitted) Superannuation Trust, (omitted) Superannuation, Australian Stock Exchange, (omitted) Bank, (omitted) Bank and the Department of Health and Human Services.
Evidence
The following findings are based upon an analysis of the applicant’s affidavits and the evidence which she gave at trial. The findings distil my analysis on particular issues. Where issues of dispute arose, I have addressed them separately in a later section of these reasons. Where it has been necessary to decide disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue.
The applicant relied upon her three affidavits and a current financial statement. Although the hearing proceeded as undefended, the respondent participated in the hearing. The respondent, being afforded an opportunity to participate in the trial, took that opportunity. In particular, the respondent made submissions, tendered evidence and cross-examined the applicant. The respondent made challenge to a number of issues in the applicant’s outline of case and her affidavits. As best as I was able, I sought to identify the precise issue which was of immediate concern to the respondent and that which he sought to challenge. To meet the respondent’s concerns, the applicant was invited to and gave evidence at the hearing and answered the questions which were put to her in relation to the matters which the respondent sought to challenge: Herold & Herold [2015] FamCAFC 5, [55] citing Re F (Litigants in person guidelines) (2001) FLC 93-072.
The applicant gave candid and forthright evidence. I found her to be an honest and impressive witness. I accept her evidence. Assessing the evidence in its totality, I make the following findings.
The applicant, who is aged 44 years, works as a (occupation omitted).
The respondent, who is now aged 60 years, had variously worked for (employer omitted) and the (employer omitted) until 2011. His employment in the period 2011 to date is unknown.
The parties commenced cohabitation in 1995. When the parties commenced cohabitation the respondent was already living at the Property A property.
The applicant’s case was that she had no significant assets or liabilities at the commencement of the relationship.
The parties were married on (omitted) 1995 under (religion omitted) law. The ceremony took place at (omitted), Sydney. The marriage was performed by (omitted). The applicant believed the (omitted) performed a religious ceremony and deposed that it was not a civil ceremony under the Marriage Act 1958 (Cth). She had obtained an (religion omitted) marriage certificate which was translated into English but deposed that she had not been able to locate it.
Following their marriage, the parties lived in the Property A property. The Property A property was sold in August 2011. Following that sale, the parties moved to housing commission accommodation in (omitted).
During the period 2004 – 2013, the applicant had employment as a (occupation omitted), earning approximately $50,000 per annum plus superannuation. The applicant applied her income toward the mortgage and to defray household expenses. The respondent did not contribute to the mortgage or household and kept his own income. The applicant said that the respondent has always kept his financial affairs a secret.
The applicant recounted the experience of some weeks where there was a shortfall in her income such that she was unable to buy groceries.
There are four children of the marriage who are aged 21, 20, 18 and 14 years respectively. The respondent also has a son from a previous relationship, Mr A, who is currently aged 23 or 24. In the course of the trial, the respondent suggested from the bar table that the applicant also had a child from an earlier relationship, but he did not seek to cross-examine the applicant upon this topic.
The two elder children, now young men, live with their father. They have had no contact with their mother since separation and do not see their sisters. So too, the respondent has no contact with his daughters.
The two younger children, being the parties’ daughters, live with the applicant and are in good health. The applicant has educated each of her daughters at (omitted) School, having paid the private school fees from her own modest earnings so as to provide them with that education. The elder daughter has now completed her secondary education while the younger daughter is presently doing so.
In about 2009 the applicant received an inheritance from her father’s estate being in a sum of (omitted)$24,000. The applicant applied the equivalent of (omitted)$10,000 in reduction of the mortgage. She also purchased a Honda (omitted) which she still drives.
The applicant’s evidence was that the respondent had been a habitual user of marijuana, smoking joints and bongs on an almost daily basis.
The parties separated in at least 1997, 2001, 2005, 2007 and 2014.
The parties’ marriage was afflicted by violence. The respondent accepted that a number of intervention orders had been made against him. In addition, the respondent was charged by police with offences arising from injuries inflicted by the respondent on the applicant during occasions of domestic violence. The applicant has been hospitalised on at least one occasion for treatment of injuries sustained at the hand of the respondent. Documentary evidence also confirms that he had retained Randles to act on his behalf in relation to certain criminal proceedings. The applicant said that on the occasion that these orders were made, the respondent would beg the applicant to withdraw them and give their marriage ‘another go for the sake of our children.’
Before the birth of the youngest daughter, the mother left the Property A property seeking shelter in emergency housing, first in (omitted) then in (omitted), taking each of the three elder children with her. She left the Property A property, holding such concern for her physical and emotional safety and that of her children, as to seek refuge from the respondent.
After the birth of the youngest child, the applicant decided to reconcile with the respondent. The applicant said that she did so for the sake of their children and in circumstances where the respondent promised that he would change his behaviour. However, he did not do so.
The applicant consulted a family therapist, Ms F, in relation to the family violence to which she had been subjected.
The applicant provided several instances of the respondent’s violent and aggressive behaviour which was both of a physical and psychological nature, including that:
(a)the respondent threw a television at the applicant whilst she was pregnant with the youngest child;
(b)the respondent would punch, bite and throw items at the applicant;
(c)whilst the applicant was attempting to complete a subject for her VCE course of study, the respondent would throw food on her books;
(d)on an occasion where the applicant and the children were in her motor vehicle, the respondent smashed a window, with the result that glass shattered into the vehicle and its occupants;
(e)the respondent brought home a quantity of petrol (with wires, batteries and matches), threatening he would burn their house down while the applicant was inside it;
(f)the respondent damaged the hot water system, with the result that neither the applicant nor their children could have hot showers (while he would utilise the shower facilities at his workplace);
(g)the respondent propelled a (omitted) trolley toward the applicant;
(h)the respondent damaged the applicant’s personal belongings.
Whilst the parties reconciled on several occasions, they finally separated on 2 December 2014. The applicant has applied to a (omitted) Church for a divorce. They have not yet obtained an (religion omitted) divorce.
The circumstances of the party’s final separation were themselves occasioned by violence. Some days prior to their final separation the applicant had purchased a new lounge suite, a dishwasher, a fridge and air conditioning unit. The applicant returned home from work to discover that the new fridge had been dented, the dishwasher damaged, the electrical cords of the air conditioning unit had been severed and the lounge suite damaged. An argument occurred outside the applicant’s housing commission home. The applicant challenged the respondent in relation to the damage to those items of property. The argument was of sufficient volatility that the police became involved. The respondent told the police to arrest the applicant. However, the police questioned the parties and asked the applicant whether she wanted the respondent arrested. She replied that she did so. The police arrested the respondent, inspected the damaged items in the apartment and took photos. The police advised the applicant to obtain an intervention order against and to stay away from the respondent.
The respondent’s violent behaviour toward the applicant continued.
In the period December 2014 – May 2015, the respondent would come to the applicant’s home, climb onto the roof and seek to gain access to the home through a manhole. The respondent’s conduct necessitated police intervention. The applicant says that the eldest son has also attended the applicant’s house. The applicant says that the eldest son climbs onto the roof and that her concern is such that she fears for her safety and that of her daughters. The applicant attributed the conduct of her eldest son as having occurred at the behest of the respondent.
The applicant deposed that the respondent has said that court orders will not stop him from killing her.
Interest in the Property A property
In light of an issue that emerged at trial it is necessary to examine the circumstances relating to the Property A property in some detail. Contextually, I note the respondent’s position was that he owned the Property A property and that the applicant was entitled to nothing. At trial the respondent suggested that he owned the Property A property in his own right. For the reasons that follow, I reject that submission.
After the parties commenced cohabitation in 1995, the respondent had purchased the Property A property as sole proprietor in 1996. As noted, the property was encumbered by a mortgage although the amount of both the initial purchase price and the sum borrowed to secure the purchase (the mortgage liability) was not known. An entry on that copy title shows that on (omitted) 1996 (omitted) Bank was the registered as first mortgagee.
Following the parties’ marriage, in (omitted) 1998 the respondent transferred a joint interest in the Property A property to the applicant. Examination of the title to the Property A property confirms that the respondent and applicant became registered as joint proprietors of the fee simple estate in the Property A property by instrument of transfer (omitted). The applicant’s joint interest was registered on that title on (omitted) 1998. The reason for this transfer was not explored.
At the commencement of the trial the respondent produced a transfer of land which, he said, demonstrated that the property had been re-transferred into his sole proprietorship. He relied upon an instrument of transfer dated (omitted) 2004 (2004 transfer), which was admitted into evidence. The transfer appears to have been executed by each of the parties and witnessed by the same person. The consideration expressed in the transfer was ‘the desire of the Transferror Ms Sait to make a gift to the Transferee’. The transfer had been stamped as being exempt from liability for stamp duty. Precisely, why this transfer had been executed was not explored also.
However, the 2004 transfer was never registered.
By way of rebuttal to the respondent’s tender of the 2004 transfer, the applicant tendered, as a bundle, a number of documents related to the parties’ 2011 conveyance of the Property A property.
A title search was obtained by the vendors’ solicitor on 4 May 2011 relating to the Property A property (being the land described in certificate title volume (omitted)). As noted above, the search showed that on (omitted) 1998 both the respondent and applicant were registered as joint proprietors of the fee simple estate in the Property A property.
The contract of sale was prepared by the vendor’s solicitors, Randles. The contract named the vendors as being ‘Mr Auton and Ms Sait’.
The contract of sale dated (omitted) 2011 was executed by both the applicant and respondent. The applicant’s signature on that contract is the same signature as appears on each of her three affidavits and financial statement. Had I accepted the respondent’s contention that he had owned the property in his own right since December 2004, there would have been no need for the applicant to be a party to that contract.
The transfer of land prepared in 2011 named the transferors as ‘Mr Auton and Ms Sait’ and was executed by both the applicant and respondent.
Each of the trust statement, settlement statement and statement of adjustments was addressed to both the applicant and respondent. Those documents were prepared by the vendors’ solicitors, Randles. In each case, the title of the document is said to relate to a conveyance by each of those parties. There is no suggestion in any of those documents that the only vendor was the respondent.
The vendors’ statement contained in the contract of sale given pursuant to s 32 of the Sale of Land Act 1962 (Vic) was signed by both the applicant and respondent.
A letter dated 3 August 2011 from the purchaser’s solicitor to the vendors’ solicitor is addressed: re – Ms Auton & Ms Sait to Rowlands and/or nominee: Property A. The letter confirms acceptance of the vendors’ statement of adjustments and that the date appointed for settlement was 5 August 2011. One might reasonably infer that the purchaser’s solicitor would have objected to a transfer put forward in the name of the respondent alone if he had purported to sell as sole proprietor of the Property A property.
Contrastingly, the only document included in the vendors’ solicitor’s conveyancing file that was addressed to the respondent alone was a statement of account dated 11 August 2011. However, this statement did not relate to the costs of the conveyance of the Property A property. To the contrary, the professional costs itemised in that statement of account related to a variety of matters (including what was described as a ‘proposed transfer of land’), unrelated to the conveyance. In addition, the statement contains references to accounts related to the costs of defending proceedings in the Magistrates’ Court being for several police matters, intervention orders and family law matters.
For completeness, I note that in the period (omitted) 1997 – (omitted) 2009 several caveats were lodged against the title to the Property A property. Three of those caveats were lodged by Randles, while one caveat was lodged by Victoria Legal Aid and another caveat was lodged by (omitted) Pty Ltd. There was also a caveat launched by (omitted). The caveats lodged by Randles claimed an equitable interest as charge in respect of unregistered instruments of charge dated (omitted) 2002 and (omitted) 2004 respectively, each of which had been given by the respondent alone in favour of those solicitors. The caveat lodged by Victoria Legal Aid claimed interest as charged by reason of an unregistered instrument of charge dated (omitted) 2002 granted by the applicant. (omitted) Pty Ltd ((omitted) Finance) claimed an equitable interest as charged by virtue of a loan agreement dated (omitted) 2006. (omitted) claimed an equitable estate by virtue of an implied and/or constructive trust. Further, there was entered on the title to the Property A property four warrants of seizure and sale. Those warrants were in relation to two actions being action numbers (omitted) and (omitted). The warrants of seizure and sale registered on the title appear to relate to unpaid school fees and medical treatment.
Self-evidently, the removal of the caveats (and possibly satisfaction of the warrants) was required in order for settlement to be effected.
As the respondent and applicant were registered proprietors of the Property A property and sold that property pursuant to the contract of sale dated 27 May 2011, it follows that I reject contention that the respondent had registered the 2004 transfer at any time and so secured a transfer of the applicant’s joint interest in the Property A property.
In August 2011, the parties completed the sale of the Property A property. It is necessary to understand how the purchase price payable under the contract of sale was applied at settlement.
The contract of sale establishes that the sale price of the Property A property was $520,000. The settlement statement identifies the costs and expenses of sale, allowances by way of adjustments, outstanding rates and repayment of the debt secured by mortgage as follows:
(a)(omitted) Bank: repayment of mortgage $63,170.75
(b)(omitted) Finance: repayment of loan $ 6,473.87
(c)Victoria Legal Aid: charge $13,034.36
(d)Randles: repayment of loans $ 5,038.36
(e)Costs and disbursements $ 3,367.90
The statement of adjustments records, and I accept, that after deduction of selling costs and allowances for agreed adjustments, payment of rates and various secured debts, the net proceeds of sale from the Property A property payable to the vendors was $398,540.94.
However, a trust statement prepared by Randles dated 11 August 2011 shows that those net proceeds of sale were further reduced by a sum of $20,000 resulting in a payment of the balance of funds of $378,540.94. The trust statement confirms that the net proceeds of sale were $398,540.94 (and after deduction of further costs of $20,000), the balance was to be held on trust for the vendors. The statement reads:
TO Mr Auton & Ms Sait – balance of funds – $378,540.94.
Something further also needs be said concerning the $20,000 reduction in the net proceeds of sale on account of those further costs.
As noted, there was also a statement of account addressed to the respondent alone. This statement, also dated 11 August 2011, claimed for six items of professional costs variously relating to a proposed transfer of land, defending proceedings at the Broadmeadows Magistrates’ Court (on two occasions in 2005 with respect to intervention orders), costs relating to further police matters in (omitted) 2004, Mr Auton’s professional costs relating to family law proceedings in the period 2007 - 2009 and various disbursements. The total of those costs in that separate statement was $20,000. However, the statement as adduced in evidence comprises only one page and appears to be an incomplete copy of that statement. In particular there is no final total of the costs and disbursements.
Reading that incomplete statement together with the trust statement also dated 11 August 2011, I conclude that a total sum of $20,000 was deducted from the net proceeds of sale which costs related to the respondent’s legal costs and expenses of his various criminal proceedings and his own family law proceedings. I find that the sum of $20,000 so paid to Randles related to professional costs and disbursements that were incurred by the respondent in relation to his criminal proceedings and family law proceedings. Those were legal costs of the respondent; they were not joint expenses.
I find that following completion of the sale of the Property A property, the sum of $378,540.94 was then held on trust for the parties.
The applicant’s uncontradicted evidence was that, without her knowledge or consent, the net proceeds of sale were transferred by the parties’ solicitor directly to the respondent.
In the period August 2011 to date, the applicant has been unable to obtain disclosure from the respondent as to what he has done with the net proceeds of sale. Despite the applicant’s enquiries the respondent has declined to disclose to her what he has done with the net proceeds of sale. Left to resolve the issue for herself, the applicant has obtained and examined, amongst other things, bank statements produced by (omitted) Bank. The applicant, with her solicitor, examined the documents produced by (omitted) Bank in obedience to the subpoena that was served on that bank. The applicant deposed that those (omitted) Bank statements recorded that on 12 August 2011 a sum of $378,540.94 was deposited to the credit of the respondent’s (omitted) Bank account.
The evidence supports a finding that the whole of the net proceeds of sale of $378,540.94 was paid to the respondent. I accept the applicant’s evidence that the whole of those funds; namely, $378,540.94 was paid by Randles directly to the respondent. I do not explore whether the payment to the respondent was a breach of trust in disregard of the applicant’s beneficial interest in the fund that was held by Randles. There is no evidence as to the circumstances in which the respondent procured that the sum of $378,540.94 was paid to him: compare Laurens & Laurens (No.2) [2017] FCCA 109 (Harland J).
Events post sale of Property A property
Following the sale of the Property A property, the respondent decided that the parties and their children would go on a holiday to (country omitted). The respondent told the applicant that they would purchase a property on the (omitted), using the proceeds of sale of the Property A property.
The parties travelled to (country omitted) in (omitted) 2011. While the parties were on that holiday, the respondent inspected several properties on the (omitted), telling the applicant that he would buy one of them.
The parties left (country omitted), returning to Melbourne in (omitted) 2012.
At trial, the respondent contended that the net proceeds of sale of the Property A property had been applied towards various expenditures. Although the respondent had filed no evidence relating to these matters, he took up my invitation and made notes of the items of expenditure as to which he wished to question the applicant. He did so. The following items of expenditure were identified by the respondent as being sums which, he contended, had been expended utilising the net proceeds of sale from the Property A property:
(a)holiday to (country omitted): the respondent contended that $15,000 had been spent on airfares using the proceeds of the Property A property. The applicant agreed that that had been the cost of the airfares. On the evidence adduced by the applicant, she also accepted that over the period (omitted) 2011 – (omitted) 2012 monies amounting to $19,761.82 were deducted from the (omitted) Bank account and spent upon living expenses during the parties’ holiday to (country omitted);
(b)furniture $40,000: the respondent said that the net proceeds of sale had been used in part to acquire furniture after the sale of the Property A property. At trial the applicant denied that contention. She had also denied it in her second affidavit;
(c)motorcycles $20,000: the applicant denied that the respondent had purchased any motorcycles. Her evidence, which I accept, was that she had purchased a motorcycle for herself and had then purchased a ‘quad bike’ for her children;
(d)education expenses $3,000: the respondent said he had paid $3,000 to pay for his son’s school fees. The applicant denied that he had done so. There was no evidence to corroborate the respondent’s account as to this item of alleged expenditure;
(e)deposit $50,000: the respondent gave no detail about this so-called ‘deposit’ and the applicant denied any such deposit;
(f)rugs $5,000: the respondent said that he had purchased rugs at the (omitted) Store for $5,000. The applicant denied the respondent had purchased any rugs; however, she did agree that the respondent had helped her carry to the car the rugs which she had purchased at the (omitted) Store;
(g)curtains $10,000: the applicant denied the respondent had purchased any curtains;
(h)refrigerator $2,000: the respondent said that he had spent $2,000 a week on food, alcohol and drugs which he kept in the fridge. The applicant denied this also;
(i)ring $12,000: the respondent maintained that after the sale of the Property A property he had taken the applicant into the city and bargained with a jeweller to purchase a ring from the quoted price of $18,000 down to a sale price of $12,000. The applicant denied the respondent had purchased any ring for her. She said she had purchased the ring herself in circumstances where he had not bought her a wedding ring. She said that she acquired that ring with her savings, using part of her father’s inheritance;
(j)car repairs: the respondent did not quantify the cost of these alleged repairs and the applicant denied the contention.
Absent admissions by the applicant or corroborating evidence, I reject the respondent’s contentions as to these matters. I reject the suggestion that the net proceeds of sale (then being held by the respondent), were further reduced by these items of expenditure.
In further identifying the assets and liabilities which comprise the parties’ property pool, I give consideration below to the applicant’s evidence as to the matters disclosed from documents produced in answer to the subpoenas that have been issued.
Further, it is necessary to consider: (1) how the respondent has dealt with monies he has received, and; (2) whether adjustments should be made to the parties’ asset pool in respect of those monies and on account of costs recovered by Randles and by Victoria Legal Aid.
Financial positions
The applicant’s financial circumstances are modest. The applicant’s financial statement discloses the following:
(a)average weekly income $ 1,144
(b)average personal expenditure $ 1,644
(c)property $ 5,000
(d)superannuation $23,969
(e)tax liabilities $ 3,325
There is no evidence concerning the respondent’s financial position and accordingly, no basis upon which (or reason why) the court should conclude that his position has deteriorated. Further, given the history of the matter there is no sufficient reason why I should assume that the respondent is unemployed or that he is presently in a parlous financial position. I decline to make any such findings in his favour.
Applicable Principles
Financial disclosure
By rule 24.03 of the Federal Circuit Court Rules 2001, a party who is required to file a financial statement is obliged to make full and frank disclosure of their financial position as detailed in that rule.
The failure to make full and frank disclosure of their financial position is important for at least five reasons: (1) the court’s determination of what orders (if any) are just and equitable by way of an adjustment of property interests is impeded; (2) legal, accounting and other costs incurred in proving a case are significantly increased; (3) delays which attend the just determination of proceedings are exacerbated; (4) the demands which are made on the limited resources of the court are compounded; (5) the determination of claims by other litigants is delayed: see, e.g., Oriolo & Oriolo (1985) FLC 91-653, 80,256 (Emery, Fogarty and Murray JJ), citing Liversey v Jenkins (1985) 1 All ER 106, 114 (Lord Brandon), and approving In the marriage of Briese & Briese (1986) FLC 91-713 (Smithers J).
Collectively, those considerations serve to emphasise the positive obligation to which parties are subject to make financial disclosure in a comprehensive manner and without delay: Oriolo, 80,256. In Briese, Smithers J observed that the Rules of Court were not to be exploited as a vehicle to mask a party’s true financial position, or to be employed as a means of adding confusion, complexity or uncertainty as to the true financial position. Nor should those rules be misunderstood as marking the outer limits of the obligation. Rather they serve to indicate the avenues by which disclosure ought properly to be made.
In proceedings for an adjustment of property interests, parties do not stand in the same relation as those conducting inter partes litigation. Parties to a marriage or a de facto relationship are not strangers who owe no duties to the other respecting disclosure of information relating to property which was acquired, improved or augmented in the course of their relationship. For this reason, they are obliged to make financial disclosure. In Oriolo, the Full Court emphasised that the need for each party to have an accurate understanding of the financial position of the other lay at the heart of an application for adjustment of property interests or maintenance: at 80,256-7 citing Briese. As the authorities illustrate, accurate disclosure of the financial position is essential to the exercise of the discretion in determining what is just and equitable when making orders adjusting property interests.
The primary task of identifying the parties’ interests in their property is made problematic where a party does not properly make financial disclosure. In such a case, the applicant and the court must confront how identification and valuation of the parties assets and liabilities may be addressed: Giunti & Giunti (1986) FLC 91-759. There, Fogarty, Murray and Nygh JJ posed the rhetorical question of how it could be open to the party which had failed to comply with the obligation of disclosure to rely upon the absence of evidence which, if available, would otherwise support the making of a property order which was just and equitable? Their Honours concluded that the court must make a finding as to the existence and value of such property even though it was necessary to do so in the most general terms: at 75,555 citing Monte & Monte (1986) FLC 91-757 (Simpson, Murray and Frederico JJ). The Full Court further recognised that faced with the task of making findings that the parties’ assets were of a likely certain value, it had been for the husband to explain such matters as were within his knowledge. The court did not disturb the finding that the wife’s contributions (financial and non-financial) entitled her to an order representing 60% of the assessed value of such property. A parties’ design of obfuscation and evasion is not an insuperable barrier to the determination of what orders are just and equitable in the adjustment of property interests: see also Black & Kellner (1992) FLC 92-287.
A different position falls for consideration where it is found that a party has deliberately failed to comply with an order to make financial disclosure. The court may then be less cautious in its approach in making findings favourable to the opposing party: Weir & Weir (1993) FLC 92-338 (Nicholson, Strauss and Nygh JJ). More recently, it has been suggested that financial non-disclosure means that “the Court need not shy away from a robust exercise of discretion in favour of the wife”: McDermott & McDermott [2017] FamCA 376, [301] (Foster J) citing Kannis and Kannis (2003) FLC 93-135; see also Jacks & Parker [2011] FamCAFC 34, [62], [122].
The holding in Weir has been regarded as meaning that “failure to disclose, such that the court cannot determine the content or value of the pool should not result in the other party failing in his or her case on the basis that the pool cannot be fully ascertained”: Elkhouri & Amatullah [2017] FamCA 688, [121] (Gill J). In this context, Gill J recognised that the High Court had been careful to emphasise that its decision in Stanford v Stanford (2012) 247 CLR 108, [46] should not be understood as: (1) charting the metes and bounds of what is just and equitable when making an order under s 79; (2) denying the importance of giving consideration to other countervailing factors which may bear upon what is just and equitable in a particular case. Gill J reasoned that where non-disclosure impeded the identification of what property comprises an asset pool or the determination of the true value of such assets, the court was entitled to anchor property orders by reference to what it considered to be just and equitable in those circumstances. Conversely, it cannot be considered to be just and equitable to permit a defaulting party to withhold property by dent of such non-disclosure. His Honour also recognised that another basis on which to assess the matter was to have regard to the identified (but unvalued), property of the party in default as constituting a financial resource of that party.
A similar principle was stated in Chang & Su (2002) FLC 93-117. There, Kay and Dawe JJ held (Finn J agreeing), that a failure to make full and frank disclosure of financial circumstances allowed the court to find that an indeterminate undisclosed amount was held by that party and to make property orders without reference to an overall pool. Kay and Dawe JJ at [67] considered that those principles were well settled.
In Hickey & Hickey; the Attorney General for the Commonwealth of Australia (2003) FLC 93-143 at [40], Nicholson CJ, Ellis and O’Ryan JJ held that because s 79 requires consideration of the parties’ entire property interests, they were obliged to make full and frank disclosure.
More recently, in Elkhouri & Amatullah, Gill J considered the approach to be taken where there was a complete absence of evidence as to the value of certain property. His Honour, referring to Chang & Su observed that the Full Court had held that the only imperative the trial judge could fall back upon was that the order be just and equitable. Gill J held at [120] that this recognised, “from first to last, the s 79 discretion is governed by the principle that the exercise be just and equitable, both as to whether any order is made and as to whether a particular order is made.” See also Trang & Kingsley [2017] FamCAFC 120, [34], [46] (Kent J, Murphy and Strickland JJ agreeing). The distinction between the existence and value of property is important. Where property can be identified as being, or as having been, in existence, it should be considered.
Undefended hearing
Non-participation in a proceeding represents another means of impeding the determination of an application. When one party fails to appear in a proceeding, whether at an interlocutory application or a final hearing, the court may order an undefended hearing. But where a proceeding is listed as an undefended hearing, it does not follow that the orders sought by the participating party will be made by the court.
Provided a party has acknowledged service, the court may proceed with the hearing of an application as if it were undefended: para 25.12(b) Federal Circuit Court Rules 2001. In determining what orders to make the court will ensure that the absent party is allowed procedural fairness: F and S (2005) FLC 93-208 (Bryant CJ, Kay and Holden JJ); Herold & Herold [2015] FamCAFC 5, [32]. As such it is imperative for the attending party to ascertain whether the absent party was properly put on notice that the hearing was listed and may be heard in their absence: compare rules and of the Family Law Rules 2004; rules 13.03B(2)(d) and 13.03C(2) Federal Circuit Court Rules 2001.
In McMahon and McMahon (1976) FLC 90-128, the Full Court held that the court is not precluded from hearing proceedings in the absence of a party where adequate notice has been given. Evatt CJ, Pawley SJ and Ellis J stated at 75, 607 that where a court proceeds to deal with a matter as an undefended matter it remains bound by the same general requirements as to proof as in a defended matter; however, “This does not mean that a court necessarily has to insist on detailed evidence, make elaborate findings and give reasoned decisions in undefended matters. This would cast too onerous a burden on the court, and clog up already crowded lists. Nevertheless it must be satisfied that the evidence supports its findings and orders.” See also Zane & Allan [2008] FamCAFC 115, at [205] (May J).
A proceeding will be treated as undefended when the respondent does not challenge or put in issue any of the components of the cause of action in question. The fact that the respondent is opposed to the court making the order and/or wishes to defend the granting of the order which is sought does not make the proceeding defended if the issues raised by the respondent are irrelevant to the issues constituting the cause of action: see A and Z [2006] FamCA 179, [64] (Faulks DCJ, Warnick and Boland JJ) citing Abbott and Abbott (1995) FLC 92-582. However, in A and Z at [22], the Full Court noted the settled principle that once it appears there is a real question to be determined (whether of fact or law) and that the parties’ rights depend upon it, then it is not competent for the court to dismiss the action as frivolous, vexatious or as an abuse of process: citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J). In my view, those principles constrain the approach to be taken on an undefended hearing. More precisely, if the applicant in an undefended hearing advances an untenable claim or submission, it must be rejected.
The nature of an undefended hearing was also dealt with in Tate v Tate (2000) FLC 93-047. There, Nicholson CJ, Kay and Waddy JJ held at [107]-[108] that the court may as a matter of discretion proceed with a hearing as being undefended. Their Honours observed that “no litigant, whether legally represented or not, should harbour any doubt that manipulation of court processes . . . through disregard of and deliberate non-compliance with its order and directions will attract other than the strongest measures from the Court”: at [108]; see also Zane & Allan.
A similar result may obtain where a respondent chooses not to participate in a proceeding. In Lanceley and Lanceley (1994) FLC 92-491, a respondent took no active part in the proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
A respondent who merely wishes to ask the court to dismiss the appellant’s application (and seeks no other order) and who wishes to place no evidence before the court, but who wishes to submit that the application should be dismissed even on the applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a respondent then attends the hearing and in fact makes no submissions against the application (as the husband did in this case) then, in anyone’s language, the application is ‘undefended’ or ‘unopposed’.
Those observations were endorsed in A and Z, at [66]; see also Zane & Allan [210] (May J) citing Abbott, supra.
In Zane & Allan at [2012], May J recorded certain principles that had been stated by the trial judge in relation to the conduct of an undefended hearing. They may be distilled as follows:
(a)a Response, if any, then becomes a nullity (Rules of Court);
(b)where a party has been default in making full, frank and prompt disclosure of their financial affairs, their application may be struck out and they ought have no further right to be heard without order of the court (Tate and Tate);
(c)parties have a duty to the court to make full disclosure and deal with the court in good faith (In the marriage ofKrebs (1976) FLC 90-117);
(d)the applicant must establish the case with admissible evidence (Tate);
(e)the court has a discretion to have regard only to the evidence of the party before the court and not the affidavit evidence of the excluded party (Tate). Conversely, the court retains a discretion to have regard to part or all of the affidavit evidence filed by the excluded party;
(f)the court may exercise a discretion to have regard to agreements reached between the parties prior to the hearing as to such matters as value of property where such agreements have been noted on the court record or where there is admissible evidence establishing such agreement (Tate);
(g)the court remains bound by the same general requirements as to proof as those which apply in a defended matter. This does not mean that a court necessarily has to insist on detailed evidence, make elaborate findings or give reasoned decisions in undefended matters. Nevertheless, it must be satisfied that the evidence supports its findings and its orders (McMahon and McMahon);
(h)subject to procedural fairness the court may allow the remaining party in an undefended hearing to rely on affidavit material filed and served on the excluded party, together with oral evidence and the tendering of documents to establish a case: (F and S);
(i)there is a wide discretion as to the extent of the involvement to be permitted to a defaulting party in the undefended hearing. This discretion must be tempered with regard to procedural fairness, natural justice and the requirement to do justice to all of the parties. Each case will demand an individual assessment by the court as to the appropriate procedure to be adopted. The reasons giving rise to the determination that the case should proceed undefended will no doubt have an impact upon decisions then made regulating the procedures to be adopted at the hearing;
(j)in appropriate cases the court may have regard to the evidence of the remaining party only.
Upon the application of those principles, May J recorded at [213] the holding of the trial judge that the husband had forfeited any right to have his affidavits read upon the hearing. His Honour concluded at [238], by reiterating the Full Court’s observations in Tate & Tate that appropriate sanctions are essential to secure obedience to its orders and directions in pursuit of the paramount objective that the attainment of justice is achieved in the particular case.
As noted, a distinction is to be drawn between the approach taken in civil litigation and that appropriate to property proceedings under the Act. In part, this is because the court is not infrequently confronted with litigants who fail in their duties of full, frank and prompt disclosure of their financial affairs. Such a party may have no further right to be heard without an order of the court and it may be appropriate not to permit that material to be tested by cross-examination: A and Z, at [68]-[69] citing Tate v Tate (2000) FLC 93-047, 87,712. The trial judge also has the discretion to exclude affidavits from witnesses who are unavailable for cross-examination: see e.g. Atkinson and Atkinson (1997) FLC 92-728 (Baker, Lindenmayer & Smithers JJ) Chang and Su (Finn, Kay and Dawe JJ).
By extension, a settled rule of evidence commonly known as the rule in Jones v Dunkel is that in civil litigation, the unexplained failure of a party to give evidence on a material issue may (not must) support an inference more easily to be drawn from the evidence which had been called by the opposing party: see Cross on Evidence, 10th Ed (2015), [1215]. The rule is subject to exceptions. Relevantly, while the failure to call such evidence does entitle the court to take into account the fact of such failure, it does not entitle the court to conclude that the uncalled evidence would have been damaging to the case of the party who did not call it: HML v R (2008) 235 CLR 334, [303] (Heydon J). As importantly, the rule cannot be employed to fill gaps in the evidence: Jones v Dunkel (1959) 101 CLR 298, 308, 312, 321.
Depending upon the circumstances, where a party destroys or conceals documents or fails to comply with orders for production, such conduct may constitute an implied admission or as circumstantial evidence which permits the court to draw and adverse inference: Kuhl v Zurich Financial Services (2011) 243 CLR 361, [64]; Port Kembla Coal Terminal v CFMEU (2016) 248 FCR 18, [562]. The court may more confidently draw that adverse inference where a person has been afforded an opportunity to comply but has failed to do so: Adler v Australian Securities and Investment Commission [2003] NSWCA 131, [651], [658]. As the plurality explained in Kuhl at [64], there is stronger ground for drawing an adverse inference as against a ‘party-witness’ because the party has a direct interests in the outcome of the litigation and where giving evidence has sworn to tell the whole truth: The failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence that would have been damaging to their case, and that is because the party-witness has a duty to see that the relevant evidence is adduced.
The rule in Jones v Dunkel operates most clearly in inter partes litigation where parties participate in and contest the issues at trial. However, in my opinion, the rule gains added force where the litigation is between parties to a marriage or de facto relationship where their property proceeding rests on a foundation that each party is entitled to full and frank disclosure from the other in order that an assessment can properly be made as to what orders are just and equitable.
It follows that where an applicant has adduced evidence on an issue which the respondent might reasonably be expected to have answered, the failure to provide an answer – including by a failure to make disclosure – this allows for an inference more confidently to be drawn from that evidence which the applicant has been able to adduce.
The intersection between principles which govern the determination of property settlement proceedings where a party has failed to make financial disclosure and the rules of evidence will operate so as to promote the paramount object that orders made are just and equitable.
I have had regard to those principles in the present case.
Adjustment of property interests
Part VIII of the Family Law Act 1975 (Cth)[1] concerns the subjects, Property, Spousal Maintenance and Maintenance Agreements, and is comprised of ss 71 – 90. Part VIII is augmented by the further provisions contained in Parts VIIIA – Part VIIIB, ss 90AA – 90MZH.
[1]Unless indicated to the contrary, a reference to a provision of legislation is a reference to the Family Law Act 1975 (Cth).
Part VIII applies to regulate the rights and entitlements under the Act respecting the property of parties to a marriage. It does not apply to regulate the rights and entitlements of parties to a de facto relationship: see as to de facto relationships, Part VIIIAB.
The applicant candidly deposed that she did not believe the parties’ marriage was a civil ceremony under the Marriage Act 1958 (Cth). What follows in the present context? For the purposes of that Act, the term ‘marriage’ means the union of two people to the exclusion of all others, voluntarily entered into for life: see s 5; Nygh’s Conflict of Laws in Australia, 9th Ed (2014), Ch 24, ‘The meaning of Marriage’.
Relevantly, s 23B of the Marriage Act prescribes the grounds on which an Australian marriage may be void. Part IV of the Marriage Act concerns the solemnisation of marriages in Australia and comprises ss 25-59. For the purposes of the Marriage Act, certain religious bodies and organisations may be proclaimed to be a recognised denomination: s 26, Marriage Act. One such denomination is the (religion omitted) faith.
While an Australian marriage must be solemnised by an authorised celebrant, where a marriage has been solemnised otherwise than in accordance with Part IV, Div’n 2 of that Act it is not, for that reason, invalid: ss 41, 48, Marriage Act. An authorised celebrant, who solemnises a marriage must prepare a certificate of marriage: s 50.
The evidence in the present case is that the parties’ marriage was performed by a (omitted) Church in Sydney and that the applicant did obtain an (religion omitted) marriage certificate upon the solemnisation of the parties’ marriage. I accept that evidence. Since separation, the applicant has applied for an (religion omitted) divorce. There is no reason for concluding that the parties’ marriage is void or invalid.
Under the Family Law Act, jurisdiction is conferred on the court to hear and determine a proceeding instituted between parties to a marriage respecting their property or the property of either of them: ss 4(1), 39(1A), 39(5A). As noted, Part VIII of the Act concerns property.
For the purposes of Part VIII, ‘marriage’ includes a void marriage: s 71. It follows that parties to a marriage (whether or not void), may seek orders under s 79 for an adjustment of their property interests: see Broun & Fowler, Australian Family Law & Practice, Vol 1, [10-530].
I conclude that, irrespective of the applicant’s belief above, the present application falls for determination under Part VIII of the Act.
The alteration of property interests of parties to a marriage is provided for by s 79. In property settlement proceedings with respect to the property of parties to a marriage, the court is authorised by para 79(1)(a) to make such order as it considers appropriate. The power to make orders for the adjustment of property interests rests upon two broad principles. First, orders made under s 79 should, so as far as is practicable, finally determine the parties’ financial relations. Secondly, s 79 implicitly recognises that the parties to a marriage are equal in status: Mallet v Mallet (1984) 156 CLR 605, 608 (Gibbs CJ).
As concerns sub-s 75(2) factors, I consider that post-separation the parties have had a modest lifestyle. There is no evidence to indicate whether the health of either party was other than good. The applicant is now aged 44 years, and has worked throughout the marriage to support the children and herself. The respondent who is aged 60 years had been secretive of his income and continued in that mode throughout this proceeding in declining to make financial disclosure including of his present means. I decline to make any finding in his favour as to any limitations on his employability but recognise that he is nearing the end of his working life. If he has chosen not to work, that is not a matter upon which I can make any finding.
The applicant has had responsibility for the parties’ youngest child. She has not had any significant financial or other contribution in relation to herself or the care of that child, since separation in 2014.
There is no evidence whether the respondent is entitled to a pension.
The parties’ standard of living is modest.
The court also has a discretion to consider any fact or circumstance which in the court’s opinion the justice of the case requires be taken into account. There are three (albeit overlapping) matters which, in my opinion the justice of this case does require to be taken into account.
First, for the reasons above, as concerned the respondent’s financial non-disclosure, I have taken a robust assessment of the matter.
Secondly, the respondent secured payment of and has retained the benefit of the whole of the net proceeds of sale of the Property A property together with the accumulated benefits standing to the credit of his accounts with the (omitted) Fund and the (omitted) Super Plan.
Thirdly, I take into account also the additional cost and delay to which the applicant has been subject in pressing this claim in the face of the respondent’s sustained non-compliance with orders for disclosure.
At the hearing the applicant sought a division of the parties’ asset pool as to 64% in her favour with the balance; namely 36% in favour of the respondent. For the avoidance of doubt, the respondent maintained that the applicant was entitled to nothing.
In cases where, as here, the net pool is relatively modest it may be preferable to express an adjustment as a lump sum rather than as a percentage: see Kilpatrick & Kilpatrick [2017] FamCA 432, [94] (Austin J) citing Parrott v Public Trustee of NSW(1993) 17 Fam LR 785 at 790-791; see also Quinn & Quinn (1979) FLC 90-677 (Evatt CJ). Upon those principles, I conclude that it is appropriate to make an order for the payment of a lump sum. I approach this assessment doing the best I can on the available evidence.
In making an assessment of the parties’ asset pool I have concluded that their net assets ($321,775), together with their accumulated or paid superannuation interests ($163,695), in all the sum of $485,470 remain available to be the subject of orders pursuant to s 79. In making a determination as to that net asset pool the sum of $485,470 I conclude it is just and equitable that the parties’ property interests should be adjusted as to $258,970 to the applicant and $226,500 to the respondent. I have reflected on the differential between those figures.
In the making of final property orders, it is settled as being desirable to make orders that avoid the sharing of particular assets: Norbis v Norbis (1986) 161 CLR 513, 521 (Mason and Deane JJ). Upon that principle I conclude that the parties’ property should be adjusted as follows:
Applicant $ Value Share in net proceeds of sale of Property A property 230,000 Applicant’s motor vehicle Honda (omitted) 5,000 Applicant’s superannuation 23,970 Applicant’s share in net asset pool $258,970 Respondent $ Value Share in net proceeds of sale of Property A property 86,775 Respondent’s superannuation (as paid to respondent) 139,725 Respondent’s share in net asset pool $226,500 Total asset pool $485,470 In reaching this conclusion, I have undertaken a review of the entirety of the facts and circumstances as presented in the evidence. I have done so for the purpose of reflecting, holistically, on what order is just and equitable in all of the circumstances.
The applicant is entitled to an adjustment of the parties’ property interests such that she will retain property of $258,970. The respondent will retain property of $226,500. Aside from the applicant’s entitlement to her share of the net proceeds of sale of the Property A property, the applicant’s will retain her personal property above. By para 80(1)(a) of the Family Law Act, the court may make an order for the payment of a lump sum. In the present case, it is appropriate to make such an order as the respondent has failed and refused to divulge the whereabouts of the net proceeds of sale of the Property A property or the proceeds of the superannuation interests which he has cashed out. An order will be made that the respondent pay the applicant the sum of $230,000.
The orders to be made will secure the result that the parties’ asset pool will be divided so as to achieve an overall division in the proportions that I have determined should be applied. The orders that are to be made in this proceeding in the exercise of the court’s discretion under s 79 recognise the broad principle that orders made under that section should, so as far as is practicable, finally determine the parties’ financial relations. I am satisfied that those final orders are just and equitable: JEL v DDF [2000] FamCA 1353, [152(i)].
I certify that the preceding one hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 2 February 2018
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